Wisconsin referendum would gauge public support for repealing state's 1849 abortion ban

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Wisconsin's 173-year-old abortion ban went into effect after the U.S. Supreme Court struck down Roe v. Wade in June.

Wisconsin Democratic Gov. Tony Evers on Jan. 17 announced that his party wants to let voters voice their opinion on the state’s 1849 law banning abortion, which makes it a felony to perform the medical procedure in the state.

Evers is proposing an advisory referendum "on the question of repealing Wisconsin's 1849 abortion law and restoring the constitutional rights guaranteed under Roe v. Wade" be placed on the ballot for April 4, 2023, for all voters in the state. The results of voting on the referendum would not be binding.

Wisconsin's 173-year-old law bans abortion in nearly all cases, including rape or incest. The ban was placed on hold after the U.S. Supreme Court's 1973 ruling in Roe v. Wade affirmed the federal constitutional right to an abortion before fetal viability. But the state law was never formally repealed, and it went back into effect after the Supreme Court reversed its ruling on Roe in June.

Evers and state Attorney General Josh Kaul filed a lawsuit in state court in June challenging the 1849 law. The lawsuit claims that more recent state abortion laws supersede the ban.

"The Wisconsin statutes contain two sets of criminal laws that directly conflict with each other if both are applied to abortion. In these circumstances, it is well settled that the older law cannot be enforced," the lawsuit states.

That case is currently making its way through the courts and could ultimately arrive at the Wisconsin Supreme Court, which currently has a conservative majority. Democrats have an opportunity to gain a majority in the April election by winning the seat currently held by retiring conservative Justice Patience D. Roggensack.

"The 2023 Wisconsin state Supreme Court race is the most important election that nobody's ever heard of," Ben Wikler, the chair of the state Democratic Party, told Politico. "It has implications that will affect national politics for years to come, really at every level of government."

The Republican-controlled Wisconsin Legislature rejected an effort to repeal the state’s abortion ban in October.

"This is an opportunity to make crystal clear where Wisconsinites stand on this issue: we support #Roe, we support reproductive freedom for our loved ones, our friends, and our neighbors, and we will fight like hell every single day until Republicans heed the will of the people," Evers tweeted on Jan. 17.

Because of the law, abortion is effectively illegal in Wisconsin. The only instance in which an abortion is legal in the state is when two physicians agree that an abortion is necessary "to save the life of the mother." The website Wisconsin Watch reported in August that physicians say the language is too vague, and that many are now hesitant to perform the procedure — even if it would mean saving their patients’ lives — for fear of being charged with a felony.

Democrats have been pushing the Republican-controlled Legislature to repeal the 1849 law for nearly a year, from months before the Supreme Court's decision in June that once again allowed states to ban the procedure before fetal viability.

In January 2022, Evers, Democratic lawmakers, and reproductive rights groups called on the legislature to pass Senate Bill 75, which would have repealed the law.

"If Roe v. Wade is overturned, Wisconsin could turn back the clock 50 years on reproductive healthcare access," Evers said in a statement at the time. "We cannot and should not go backwards."

The legislation died in committee in the Republican-controlled state Senate.

State Assembly Speaker Robin Vos said he's open to amending the law by allowing abortions in the state in cases of rape or incest — but only if a victim first filed a police report. According to the Milwaukee Journal Sentinel, Vos said last year, "Having a discussion about where society is and making sure that we are in tune with the majority in society is important because we have to work on winning the culture war, but we also have to work on making sure that we have a position that is tenable and that makes sense to the vast majority of people."

Polling shows that a majority of Wisconsinites support abortion rights. A Marquette University survey in June found that 59% of people in the state want abortion to be legal in all or most cases.

"Wisconsinites overwhelmingly support #Roe and safe, legal access to abortion. That's a statement supported by data — it's not up for debate," Evers tweeted on Jan. 17. "But Republicans act like repealing our criminal abortion ban is radical or that there's room for 'compromise' on restoring the constitutional rights and freedoms Wisconsinites had for almost 50 years before SCOTUS stripped them away. That's wrong—and Republicans know it."

It's unclear whether the advisory referendum will make it onto the ballot, as the GOP-controlled Legislature would have to sign off on the referendum question, according to WEAU News.

Published with permission of The American Independent Foundation.